Denied

BACK TO COURT The defendants in the civil suit stemming from Andy Lopez’s death may still get qualified immunity.

The United States Supreme Court on Monday denied a petition filed by lawyers representing Sonoma County and Sgt. Erick Gelhaus of the Sonoma County Sheriff's Office (SCSO).

The court rejected a petition for the court to issue a rare writ of certiorari that attorneys hoped would hold up a qualified immunity claim for Gelhaus in an ongoing federal civil rights lawsuit stemming from the 2013 police shooting death of 13-year-old Andy Lopez of Santa Rosa.

The Supreme Court ruling appeared to come as a surprise to some court watchers and reporters, who expected that the court might follow on from a recent writ it filed in another use-of-force case from earlier this year, Kisela v. Hughes, that was appealed to the high court—and grant Gelhaus qualified immunity.

A report in the Los Angeles Times from June 10 said the county's lawyers "stand a good chance of prevailing" before the Supreme Court, despite very low odds that greet any petition that comes before the court.

The county lawyers did not prevail.

Noah Blechman, outside counsel for Sonoma County, says he's disappointed but not especially surprised in the court's decision, given that "only 2 percent of cases sent to the Supreme Court get reviewed and actually get rulings."

The ruling this week, he says, was disappointing but clarifying. In rejecting the petition, the court left open the issue of qualified immunity for Sgt. Gelhaus, Blechman says and, in doing so, also "leaves open legal and policy questions that impact law enforcement locally and nationwide."

The Supreme Court did not reject the county lawyers' call for qualified immunity, but sent the case back to the U.S. District Court in Oakland for a potential trial, which would determine whether the Lopez shooting was justified under the Fourth Amendment and whether Gelhaus ought to be held personally responsible for the death of Lopez, who was carrying a replica AK-47 when he was shot. The fake weapon was an Airsoft rifle whose orange safety tip had been previously removed by a friend of Andy's who owned the fake weapon.

Attorneys for the county and the officer have argued that Gelhaus was justified in the tragic and divisive shooting.

The SCSO was not surprisingly disappointed with the outcome, says Assistant Sheriff Clint Shubel. "We want to get clarity and guidance from the courts on the legal issue because it impacts community safety across the nation," says Shubel. "This legal issue can affect the decision-making ability of peace officers under split-second, life-or-death situations. Every use-of-force situation is unique and can be very difficult. When faced with a perceived deadly threat, peace officers need to know when and how they are legally allowed to protect the public they serve. They can only know this through clearly established law."

Blechman notes that when officers are involved in a situation where they "reasonably perceive" that their or their partner's life, or the lives of nearby citizens, are at risk, and the officer is forced to make a split-second decision, "normally the officer is granted qualified immunity for being forced to make that difficult decision." That principle has been upheld in numerous court decisions.

One of the sticking points in the case is the position of the fake AK-47 itself when Gelhaus shot Lopez seven times, fatally wounding him.

In previous testimony, the officer indicated that the replica rifle was pointed downward but swinging up toward him as Lopez turned around to face the officers after Gelhaus commanded him to drop the weapon.

"I haven't found any similar cases that had that high degree of danger that deputy Gelhaus faced," Blechman says—where the officers involved didn't receive qualified immunity for their role in a use-of-force incident involving a firearm, whether it was fake or not.

Local activists in police-accountability circles were gratified by the decision from the conservative Supreme Court to send the case back to the lower court, and called on the county to settle the suit with the Lopez family.

"The county's unsuccessful appeals to the U.S. District Court, U.S. Court of Appeals and now the U.S. Supreme Court have already cost taxpayers some $4 million in attorney's fees," charges Santa Rosa activist Kathleen Finigan.

"Attorneys representing the Lopez family have shown that the county's filings include false statements about the shooting," says Finigan, "most notably that it was 'undisputed' that Andy brought his plastic toy up in the direction of the officer."

Blechman says he doesn't know and won't speculate on what factors in the Lopez case compelled the Supreme Court to reject the petition.

A Supreme Court decision from earlier this year to accept a separate petition for a writ of certiorari had given rise to the possibility that the Supreme Court would rebuke the 9th Circuit Court of Appeals for overreaching in the Gelhaus case—as it argued had been the case in Kisela v. Hughes earlier this year.

That use-of-force case involved an officer who shot and killed a woman who was brandishing a knife, and the officer involved in the incident was granted qualified immunity.

Contemporary police use-of-force guidance at the constitutional level stems from a landmark 1989 court decision, Graham v. Connor, which established a general rule of thumb for qualified immunity as being in play if an officer reasonably believes that his life, or others' lives, may be at risk during an encounter with a perpetrator. The Graham decision set what's known as an "objective reasonableness standard" to determine whether police activities are constitutionally chary.

In its 2–1 ruling on the Gelhaus appeal, the Ninth ruled that there were issues at hand that could only be resolved through a jury trial, given that there were strands of testimony previously given that were at apparent odds with one another. The judges cited Lopez's young age as a factor in their ruling. Blechman wouldn't say whether he believes Lopez's age was a factor in the Supreme Court decision to not issue a writ of certiorari, as he notes that there's no evidence on the record to indicate Gelhaus had any idea how old he was.

In denying the writ of certiorari, the Supreme Court passed on the opportunity to take another swing at the Ninth—which is often singled out for its purported liberal bias by conservatives—as it had done in an April 18 ruling when a majority of the justices ruled on Kisela and noted that "this Court has repeatedly told courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of generality."

As the local police-accountability community repeats its ongoing demand that the county settle the suit, Blechman says "we are going to continue to evaluate all available options to move this forward toward final resolution."

There are only two of them: settle with the family or go to trial.

"This could end up in a trial jury situation," Blechman says, noting that even if the Supreme Court didn't want to hear the qualified immunity argument from Sonoma County, "we can still raise the qualified immunity issue. It is still viable."

The attorney for the Lopez family, Arnoldo Casillas, says he's looking forward to a jury trial as he calls the high court's decision "bittersweet for the family. They are certainly happy that every time any judicial officers have evaluated the shooting, they found that the facts did not support immunity and that there were very significant issues that a jury has to decide. But ultimately, they still lost a son."